Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-04-25
TIE HIGHER COURTS.
Synopses of Decisions Rendered ut the
Present Austin Sitting.
Supreme Court.


A. II. Willie, chief justice; j, W. Stayton anC
K. L. Gaines, associate justices; g. S. Morse
| clerk; Il. NJ. johnson, bairiff.
W. II. Kellogg IL Co. VS.. Fred Muller
from Grayson county; opinion by Gaines
Al. One Porter made deed of assign
ment to appellee before the act of 1877!
concerning assignments went into effect
! Appellants attached the goods conveyed
in the deed, part OF which were levieC
on. Appellees brought this suit agains
appellants and one Everhart, the sheriff
who made the levy, and his sureties
to recover damages for the seizure
Everhart and his sureties pleaded
that he had an indemnity bond from ap
pellants, and asked Judgment against
them in the event sppellees won. The
jury found for the plaintiff against all the
defendants, and in favor of Everhart
against appellants for the amount of the
verdict and $40 attorneys fees. The
first exception to the deed was that it au.
thorized assignee to sell for credit be-
cause it contained the words, "converting
the same into cash or its equivalents. ="
There may be little doubt
here, but to be equivalent to
cash means something commercially IS
good as cash. The grant of q power to
!: an assignee to sell for credit Is badge Of
fraud; by no reasonable con Struction do
we think the power in the deed before US
can be considered an evidence of fraud.
The second exec ptiOn was that the deed
was void on it's face because it did not fix
the rights of creditors, because it said
that any omitted creditor whose claim is
just, etc, shall share with the nOn-pre-
ferred creditors. The rule is that
a deed of assignment must point
out the benefciaries, but a reason
able compliance with the rule
is all that is required. 1t has been held
that deed is good when the names of the
creditors are given without stating the
amounts. In the deed in question all the
creditors are named as far as known, and
it was decided in similar case that this
is sufficient. The appellants claim that
the court erred in refusing to charge that
the evidence showed ell the preferred
creditors had been paid and did not show
that the nOn-preferred ones had accepted
the assignment. But the statement III ap-
pellants' brief showed that one creditor
whose debt was $1,000, received
only $500. There is no evil
dence as to who were paid, and we think
the burden of this proof was on the ap-
pellants to show that all who were named
were paid before they could proceed
against assignee. There is no error in
the judgment in favor of appellee, but we
think the court erred in charging the
jury to find against appellants for the
sheriff's, attorney fees. The sheriff may
recover fees where he has an indemnity
bond, if after judgment against him his
obligors fail to discharge the bond. Here
there has been no breach of the bond, and
the finding of the attorney fees is error
The judgment is reversed and reformed
SO as to give Everhart a judgment
a gainst appellants for the amount of ap-
pellees judgment. Appellants will be
appeal, and EVerhart and his sureties the
other half.
j. Willis & Bro. VS. J. G. Whitsett,
from Bell county; opinion by Willie, c.
J. Appellants creditors of one Kellam,
sued out an attachment against g stock
Of goods IN the hands of appellee.
This suit was brought to recov
er damages for the seizure
and a verdict OF $2583 81 was given
with interest at per cent. from date of
levy, and judgment was entered for 10
per cent. interest. Appellee RENTS all
interest over per cent. and agreed to
remit all that accrued prior to January l,
1882, if this court so held. Appellants
Claim that the court erred in turning the |
case solely upon the question as to
whether or not the transfer from Kellam |
to Whitsett was fraudulent when they
claimed there had been no transfer, but
the evidence all goes to show that there |
was a transfer and the court did |
not err in throwing out an issue |
by evidence. The COM
plant that the court erred in charging |
the Jury that in order for appellants to |
get a verdict their claim must have ex
ceeded the value of the goods, would be |
a good one if the facts in the case had |
not shown that appellants claim was
nearly twice the value of the goods, and |
appellants were therefore not prejudiced. |
The complaint that the court erred in |
charging the Jury that in determining |
what was a valuable consideration |
or appellee to give for goods,
hey would inquire what was their
market value at the time of transfer
because there was no evidence of their
7alue, is not good as it is presumed that
he goods being in store were worth at
wholesale their cost price which was
marked on them. The court erred in
charging the jury that they were author
zed to consider the interest of the wit
lesses who testift in the matter in con-
,roVersy. The appellee was the only
witness who testified that had any inter
,st in the controversy. 1t is not pre-
of law that transfer is
made with fraudulent intent
the grantor at the time is indebted
% another party; in such cases much de-
bends upon the amount of Indebtedness
md other circumstances. In this case the
petition claimed interest from January l,
S82, and the verdict was for interest
rom December 8, 1881. The sppellee
Gould not recover more than he claimed.
The judgment is entered at 10 per cent.
instead of s, which is error. The judg-
nent will be reformed so as to allow
Ippellee's interest on the principal sum
recovered at per cent. from January l,
882, and to make the judgment bear in
crest at s per cent. from it's rendition
below, the appellees to pay costs of this
court. Thus reformed the judgment will